Alternative Path

Dan Jones and Dominic Thomas from criminal law set, Artesian Law, explain why they have chosen to go down the ABS route

As six members of a traditional criminal set – of between 12 and 34 years of call – it became increasingly clear to us that the chambers structure is, in many respects, out-dated, uncompromising and struggling to cope with the challenges that face us all in practice as members of the self-employed Bar. We didn’t want to get left behind as we waited for a conservative management committee, leading a large group of uncertain barristers, each with a vote as to the way forward, to catch up with events.


None of us wanted change – we are all proud to be members of the Bar, and proud of its traditions – but looking at the realities of criminal practice, we turned our minds to creating a legal structure which could allow us to compete in this “market” on a more level playing field. We don’t accept that it is inevitable that the Bar will have to go “in-house” as salaried employees.

We can’t exactly claim to have been the first to realise that life at the criminal Bar had to evolve. In his 2010 blueprint for the profession – The future of the Bar – the then Bar Council Chairman, Nick Green QC, said the criminal Bar needed to work with solicitors and transform itself into “fully functioning litigation units” if it wanted to survive, in part so that barristers could contract directly with the Legal Services Commission.


Drivers for change

As well as frustration with the chambers model, there were other drivers for us. There was the threat of “one case, one fee” and the cheaper alternative of “in-house” trial advocates available to solicitors. Having undergone the training to do direct access work we were galled by the introduction of Annexe F2 to the Code of Conduct which forbids a barrister to take on direct access work from a lay client “in which it is likely that the lay client would be eligible for public funding”. That obviously excluded almost all criminal instructions by direct access. Solicitors are able to simply send out a letter to tell clients that they may be eligible, but we can’t. We did not want to wait for the Bar Standards Board (BSB) to change the rule.

As a result, Artesian Law, a legal disciplinary practice (LDP) regulated by the Solicitors Regulation Authority (SRA), was born.  We remain individually regulated by the BSB and intend that Artesian – named after the road on which we first met to discuss the idea – should operate at the highest level of advocacy like a traditional chambers but in a more modern and imaginative manner. We are different in that our practice is based on cloud technology using LEX Chambers Management, meaning we mainly work from home when not in court. We maintain only a small office just off Fleet Street, keeping our overheads low.

Neither the BSB nor the SRA have put any hurdles in our way, at least once the SRA got its head around the idea of what we were doing (which took a little time, in truth), but getting established and pushing through the regulatory thicket has taken longer than expected. Everything we do is new to the regulatory authorities. The SRA and the BSB were both unsure quite how to handle us at the start, even, for example, dealing with routine enquiries about insurance. A common question is whether partners can act as opposing counsel; our view is that we would simply put up a Chinese wall in the same way as any chambers – though as yet this problem hasn’t arisen – when it does we will work with the regulators to solve it.

We are a partnership in the true sense of the word. We have a partnership agreement, we share profits, and we meet regularly as a group. Each member takes responsibility for a different part of the business, but we are all rowing together. In fact, running the “business” has been the most exciting part of setting up Artesian – it has given us an incredible sense of freedom. It may seem odd to say that we felt more shackled when we were self-employed advocates, but it’s true – there’s certainly none of the inertia that can characterise chambers decision-making.

The core group will remain running the practice, and we have already recruited our first associate member, Brian Cox QC, with more to be announced shortly. As is the case with Brian, associate members may retain their their existing chambers memberships, but can also work through and with us where appropriate.


Solicitor involvement

Another interesting option opened up by the LDP structure is shown by the solicitor who has joined as an associate member while she conducts a particular case. She benefits from our systems and insurance, and our low overheads, while we gain financially too. There are other solicitors talking to us about attaching their practices to Artesian.

In future, solicitors’ firms may be able to sub-contract their work to us. This, of course, will be subject to the regulator’s approval and we continue to work with them in exploring all of these options. At Artesian we have deliberately kept our overheads low. In the current market we felt we can no longer afford to maintain impressive office premises that are often empty all day, rarely visited by the barristers, and tend instead to be used as a dumping ground for mountains of confidential waste.

We recognise that it is not only the Bar’s fees that have been cut but also those of solicitors’ firms, many of whom are struggling to maintain their offices. We wish to explore sharing resources with our instructing solicitors. By entering into an agency agreement we would use their existing facilities and would effectively be sharing the costs of their existing office, conference rooms and administrative/secretarial support.

So, while we have not yet gone as far as Nick Green envisaged, we have the platform to respond quickly – we have no plans to seek a legal aid contract or conduct litigation, for example, but clearly we could if we wanted to. It also enables us for the first time to give proper recognition to the pivotal role played by clerks.

We neither consider nor call Tom Street a clerk (he’s our practice manager), and once we convert to an alternative business structure (ABS), he will become our managing partner. The SRA’s ABS application process took some time to get going, but we understand it is now picking up speed. We are told – and hope – that conversion will be a straightforward process; our systems having already been verified. There is an additional requirement that Tom, as a non-lawyer, is subjected to a character check.

It is fair to say that at first some instructing solicitors were wary or just confused by our model. But once they realised that we aim to operate in the usual way, as trial advocates instructed by solicitors, and in fact can work much more in partnership with them, this has fallen away.

Our only regret thus far is that we didn’t do it sooner.

The partners at Artesian Law are Stephen Mejzner, Jonathan Rose, Daniel Jones, Tarquin McCalla, Dominic Thomas, Michael Neofytou and James Nicholls.

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